McNamara v. Leipzig

Scott, J. (dissenting):

The plaintiff has recovered damages for the death of his intestate resulting from the negligence of a driver of an automobile. The appellant raises no question as to the negligence of the driver or as to the amount of the verdict, and the only question we find it necessary to consider is as to the responsibility of the appellant for the driver’s negligence.

The automobile in question belonged to the Concord Garage Company and was hired by the appellant, for a term of three months, under a written contract which was read in evidence. Under the terms of this contract the Concord Garage Company rented an automobile, known as a “ Stearns 1911 Model ” which was “to be used by the party of the first part [appellant] during said period at any hour of the day or night that the said party of the first part desires *522to use same.” The garage company further agreed “ to engage and furnish to the party of the first part [appellant] a chauffeur to operate and run said automobile during the period heretofore mentioned at its own cost and expense.” The garage company further agreed to furnish all needed gasoline and other supplies, and to bear the cost of all necessary repairs. For this the appellant agreed to pay a fixed monthly rent.

It appeared in evidence that appellant had no voice in the selection of the chauffeur who was to drive the car, and that during the term of the contract the garage company had furnished at different times two different chauffeurs. The appellant simply ordered the car to be sent for him when he wanted it, and when it came used it with whomsoever the garage company had sent with it as its driver, appellant’s relation to him being confined to ordering him where to go. The only crucial question in the case, as we see it, is whether or not, under these circumstances, the appellant is liable for the negligence of the chauffeur who happened to be driving the car when the accident occurred.

The question when a servant in the general employment of one master shall be deemed the servant ad hoc of another so as to render that other and not the general employer liable for his negligent acts has been frequently considered, and the basic principles upon which it is to be answered in a given case are well settled, although not always kept in mind. The theory upon which the rule of respondeat superior is applied to such cases is that the master is responsible for the wrongs of his servant, not because he has authorized them, nor because the servant in his negligent conduct represents the master, but because he is conducting the master’s affairs and the master is bound to see that his affairs are so conducted that others are not injured. (Farwell v. Boston and Worcester Railroad Corporation, 4 Metc. 49; Standard Oil Co. v. Anderson, 212 U. S. 215, 221.) In the case last cited Mr. Justice Moody illustrates the rule as follows: It sometimes happens that one wishes a certain work to be done for his benefit and neither has persons in his employ who can do it, nor is willing to take such persons into his general service. He may then enter into an agreement with *523another. If that other furnishes him with men to do the work and places them under his exclusive control in the performance of it, those men become pro hac vice the servants of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another that that other, for a consideration, shall himself perform the work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work, and they are for the time his workmen. In the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the conduct "of it, because, though it is done for the ultimate benefit of the other, it is still in its doing his own work. To determine whether a given case falls within the one class or the other we must inquire whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary co-operation, where the work furnished is part of a larger undertaking.”

From this point of view the question as to who selects the servant in the first instance, and has the power to discharge him and who pays his wages is not determinative of the question who shall be held responsible for his negligence, although those matters may frequently throw a strong light upon the fundamental question as to whose servant he was when he committed the negligent act.

The rule thus stated by Mr. Justice Moody is amply sustained by the adjudicated cases in England and in our own State. In Higgins v. Western Union Telegraph Co. (156 N. Y. 75) it is said: The question is whether, at the time of the accident, he [the servant] was engaged in doing the defendant’s work or the work of the contractor. * * * The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct.” And in the latest case upon the subject in the *524Court of Appeals the rule is formulated thus: “A servant in the general employment of one person, who is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the servant of the borrower, who is liable for his negligence. But if .the general employer enters into a contract to do the work of another, as an independent contractor, his servants do not become the servants of the person with whom he thus contracts, and the latter is not liable for their negligence.” (Hartell v. Simonson & Son Co., 218 N. Y. 345, 349.)

Applying this rule to the case at bar it appears indisputably that the garage company contracted for a fixed consideration and a stated period to furnish an automobile and driver for the appellant’s use. It bore to him the relation of a general contractor. The defendant became invested with no right of superintendence or control over the driver, except the right to indicate when and where he wished to be driven. In the common case of hiring a cab from a livery stable or cab stand for transportation for a single trip or by the hour or day no one would be heard to argue that the driver became pro hac vice the servant of the hirer. One of the earliest cases decided was where a horse and driver were furnished by a liveryman. It was said that in such a case the hirer, although he suggests the course of the journey and in a certain case directs it, still does not become the master of the driver unless he specifically directs or brings about the negligent act. (Quarman v. Burnett, 6 M. & W. 499.)

In Schmedes v. Deffaa, reversed in the Court of Appeals on the dissenting opinion in this court (153 App. Div. 819; 214 N. Y. 675), it appeared that H., an undertaker, being called upon to furnish a number of carriages for a funeral which he was conducting, contracted with Deffaa to furnish them. Deffaa had not enough carriages and hired a carriage and driver from N., another liveryman, to make up the required complement which he had agreed to furnish. An accident occurred owing to the negligence of the driver hired by Deffaa. It was held that the latter was hable because the driver at the time was engaged in doing his work, although selected and paid by N. But it was also said that the undertaker could not have been held hable because, although it was his *525business originally to supply carriages for the funeral, Deffaa had undertaken, as a general contractor, to do that part of the work. We think that the present case falls within the category of those in which the driver is to be deemed the servant of the general contractor who employed him, and not of the appellant to whom the service was rendered. The garage company contracted to furnish appellant, for a specified period, with automobile service as he might require it. The type of car to be used was named in the contract, but in every other respect the means and method of carrying out the contract were to be under the control and direction of the garage company. There is no essential distinction between such a case, and the case of one who hires an automobile or a cab for a single trip, or an hour or a day. In each case the business upon which the driver is employed is that of the general contractor who engages to furnish automobile service to the hirer, reserving entire freedom in the selection and employment of the driver, and retaining general supervision and control over him.

It frequently happens that the question as to who is the responsible master of a negligent servant is one depending upon evidence from which different inferences may be drawn, thus becoming a question for the jury. This is not such a case. The relation between the garage company and the appellant is definitely established by a written contract. We are, therefore, at liberty to dispose of the case as a matter of law, as it clearly is when the facts are not open to dispute.

The judgment and order appealed from should be reversed and the complaint dismissed, with costs to the appellant in this court and the court below.

Clarke, P. J., concurred.

Judgment and order affirmed, with costs.